Opinion
J-A20003-15 No. 130 EDA 2015
08-05-2015
RALPH C. STANG, JR., Appellee v. JENNENE M. STANG, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Decree December 11, 2014, Court of Common Pleas, Pike County, Domestic Relations at No. 78-2010-CIVIL BEFORE: DONOHUE, SHOGAN and WECHT, JJ. MEMORANDUM BY DONOHUE, J.:
Jennene M. Stang ("Wife") appeals from the December 11, 2014 divorce decree entered by the Pike County Court of Common Pleas. Specifically, Wife appeals the trial court's denial of her request for alimony. Upon review, we affirm.
The record reflects that Ralph C. Stang, Jr. ("Husband") and Wife married on October 13, 1984. Husband filed a complaint in divorce on January 11, 2010, seeking a divorce pursuant to 23 Pa.C.S.A. § 3301(c) (mutual consent of the parties) and equitable distribution of the parties' marital property. Wife filed an answer and counterclaim on June 2, 2011, requesting a divorce pursuant to section 3301(a) (fault alleged by innocent and injured spouse) and (c) (mutual consent of the parties), equitable distribution of the marital property, alimony, and attorneys' fees and costs. Hearings before the divorce master were held October 13, 2011 and January 3, 2012.
The record reflects that the initial hearing before the divorce master was held on June 1, 2011. The record further reflects, however, that Wife did not request transcription of that proceeding and as a result, no notes of testimony from the June 1 hearing are contained in the certified record on appeal.
On February 5, 2012, the divorce master issued a report and therein included the following findings of fact:
1. [T]he parties were married on October 13, 1984. It was the first marriage for each party[.]
2. A [c]omplaint in [d]ivorce was filed on January 11, 2010, although it appears that the parties did not physically separate until sometime after that date[.]
3. [] Husband is [forty-seven] years of age and is in relatively good health, except for having high cholesterol[.]
4. [] Husband is a territory manager for Stihl Corporation[,] has a base salary of $67,000 per year and is a high school graduate[.]
5. [] Husband also earns "growth bonuses" that can vary from $2,500 to $5,000 per quarter[.]
6. [] Husband had an income of between $74,000 and $75,000 in 2010. He earned bonuses in 2011 of $3,000 for the first quarter and $1,800 for the second quarter. As for the hearing in October[] 2011, he did not know if he would earn a third quarter bonus[.]
7. [T]he parties have two children, but both are emancipated[.]
8. [] Wife took classes for medical billing and worked as a bar tender approximately [ten] to [fifteen] years prior to the hearing[.]
9. [] Wife currently works as a school bus driver and earns approximately $24,000 to $25,000 per year[.]
10. [] Wife also raises and shows dogs, although the parties disagree significantly as to whether or not she earns any income from that venture[.]
11. [] Husband admitted to having an extra marital [sic] affair in 2009 and is now residing with the person with whom he had the affair[.]
12. [] Husband has accused [] Wife of having an affair, but she denies the affair[, as does the man with whom she allegedly had the affair.]
13. [] Wife resides in East Stroudsburg, Pennsylvania, with her mother[.]
14. [T]he last pay stub for the year 2011 for [] Wife ... show[s] that Wife had gross earnings of $21,700. Since [] Wife is a bus driver she works approximately ten months per year and she indicated that she attempts to have some employment in the [s]ummer months as well[.]
15. [] Wife has a kidney condition and heart condition and takes two medications for a heart murmur. She takes a stress test every two years and in the event that she does not do well on one of those stress tests in the future, she could lose her commercial driver's license, which she needs for her current employment[.]
16. [B]ased upon the testimony and exhibits presented, the [d]ivorce [m]aster finds that the following items constitute the marital assets of the parties:
| ASSET | VALUE |
|---|---|
| a. Marital [r]esidence located at: |
| 180 Dark Swamp Road,Dingmans Ferry[,] PA | $105,000.00 |
| b. Husband's 401(k)/RetirementSavings Account | [$]74,500.00 |
| c. 2007 Chrysler Town andCountry [m]inivan | [$]3,650.00 |
| d. Husband's [p]ension [d]efined[b]enefit [p]lan | [$]756.47 permonth [u]ponretirement at age[sixty-five] |
| e. Wife's [p]ension [p]lan | Unknown |
| f. Miscellaneous personal property | See discussion below |
With respect to the remaining miscellaneous personalty, the divorce master found credible Wife's testimony that she had in her possession $8000 of various items of marital property, as opposed to Husband's representation that Wife took from the marital home items valued at approximately $30,000. The divorce master determined that Husband possessed marital property worth approximately $30,000.
Based upon Husband's salary and superior earning capacity over that of Wife and Wife's health problems, the divorce master recommended that the distribution of sixty percent of the parties' marital property to Wife and forty percent to Husband. The divorce master awarded the marital residence and the tractor to Husband, making him responsible for all debt and payments attendant thereto, and recommended that Husband keep the entirety of his pension. The master awarded Wife the minivan and held her responsible for paying the car loan, and recommended that she receive the full value of Husband's 401k account as of January 10, 2011 (as calculated above). The master made Husband and Wife each responsible for the remaining outstanding debt in their own names. Lastly, the divorce master did not recommend the award of alimony or attorney's costs, fees and expenses to Wife. According to the master,
[Wife] is being awarded a larger amount of the marital estate to account for her decreased earning ability. Neither of [the] parties has minor children to care for at this point. [] Wife is working and is getting all of [] Husband's 401k/savings plan account. A substantial amount of testimony was presented about the possibility of [] Wife having an affair. However, that factor is not persuasive to the [d]ivorce [m]aster. Even if that testimony is accurate, [] Husband admittedly had an affair. The undersigned is more persuaded by the economic factors involved. Those factors favor a greater award to [] Wife, which can be provided by a larger share of the marital property to her, without alimony. For the same reasons, it is further recommended that each party pay their own attorney's fees, costs and expenses.Id. at 10-11.
Wife timely filed exceptions to the master's report on December 26, 2012, challenging the master's failure to include Husband's pension in the equitable distribution scheme and the master's failure to award Wife alimony based upon her "substantially lower earning capacity than [Husband]" and her "health problems." Defendant's Exceptions to the Master's Report, 12/26/12, ¶¶ 2-3. On May 24, 2013, the trial court granted Wife's exception regarding Husband's pension and remanded the case to the divorce master for further consideration of the value of the plan and the overall distribution of marital property. It denied Wife's exception related to alimony.
The record reflects that the trial court erroneously entered a divorce decree on December 28, 2012. Realizing its error, it vacated the decree in an order filed on September 17, 2013.
On October 24, 2014, the divorce master entered a supplemental report. It concluded that distribution of both Husband's and Wife's pensions should be according to its original division of marital property - sixty percent to Wife and forty percent to Husband. As the amount to be distributed from both accounts remained unknown at the time of the hearing and would not be known until Husband and Wife retired, the master recommended a deferred distribution with the trial court retaining jurisdiction over the pension benefits until the amounts are known. Based upon the date Husband began working and using January 10, 2011 as the date of separation, the divorce master found that the numerator for calculating distribution of Husband's pension would be 161 months and the denominator would be determined as of Husband's retirement date. Using the same method, the divorce master determined the numerator for Wife's pension was eight months and the denominator would be determined when Wife retired.
In an order entered on November 25, 2014, the trial court adopted the divorce master's supplemental report. On December 11, 2014, the trial court entered a divorce decree granting the parties a divorce pursuant to section 3301(c) of the Divorce Code and adopting the divorce master's recommendations regarding equitable distribution of the parties' marital property and alimony.
Wife filed a timely notice of appeal on December 30, 2014 and timely complied with the trial court's order for the filing of a concise statement of errors complained of on appeal. She raises the following issue for our review: "Whether the trial court erred as a matter of law and abused its discretion based upon the evidence presented in failing to award alimony to [Wife][?]" Wife's Brief at 5.
We review a trial court's determination with respect to alimony for an abuse of discretion. Kent v. Kent , 16 A.3d 1158, 1161 (Pa. Super. 2011). "[I]t is the policy of this Commonwealth to 'grant or withhold alimony according to the actual need and ability to pay of the parties.'" Lawson v. Lawson , 940 A.2d 444, 447 (Pa. Super. 2007); 23 Pa.C.S.A. § 3102(a)(6).
Following divorce, alimony provides a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution. An award of alimony should be made to either party only if the trial court finds that it is necessary to provide the receiving spouse with sufficient income to obtain the necessities of life. The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonableKent , 16 A.3d at 1161 (citations and quotations omitted).
needs of the person who is unable to support herself through appropriate employment are met.
When determining whether to order the payment of alimony, the trial court is required to consider all factors relevant to a determination of whether alimony is necessary, including:
(1) The relative earnings and earning capacities of the parties.23 Pa.C.S.A. § 3701(b).
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, "abuse" shall have the meaning given to it under section 6102 (relating to definitions).
(15) The Federal, State and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party's reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.
In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court found that "after review[ing] all the factors listed in the above statute and the evidence presented[,] ... the [d]ivorce [d]ecree adequately meets the needs of the parties and an award of alimony would be unnecessary." Trial Court Opinion, 1/27/15, at 3.
Wife asserts that this conclusion was erroneous. She contends that the trial court failed to consider the enumerated factors required when determining that she was not entitled to alimony. Wife's Brief at 13-14. Specifically, she contends that her lower salary, higher debt and lesser employment benefits than those of Husband weighed in favor of an award of alimony. Id. at 14. Furthermore, she states that the evidence presented revealed that she is unable to maintain the standard of living she had while living with Husband, as she was unable even to afford a place of her own upon leaving the marital home, and is unable to afford to pay the debt for which the trial court has made her responsible. Id. at 15. Although she acknowledges that will receive additional income from Husband's pension, she asserts that the tax consequences of accessing that money prior to her turning sixty-five were not considered as required by sections 3701(b)(15) and 3502(a)(10.1). Id. at 13.
Section 3502(a) of the Divorce Code governs equitable division of marital property and states that the following factors are relevant to the equitable division of marital property:
(1) The length of the marriage.23 Pa.C.S.A. § 3502(a).
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
(11) Whether the party will be serving as the custodian of any dependent minor children.
Beginning with Wife's argument that the trial court failed to consider the tax consequences of her making early withdrawals from Husband's pension, our review of the record reveals that she never presented any evidence that she would be making early withdrawals such that the tax consequences of such early withdrawals would need to be considered. To the contrary, the record reflects that Wife specifically requested that the trial court utilize the "deferred distribution method" and retain jurisdiction over Husband's pension to assign a value to it upon Husband's retirement. Memorandum of Law Submitted on Behalf of [Wife], 9/19/13, at 3-5. The trial court adopted Wife's recommendation and retained jurisdiction over Husband's pension so that it could assign a value to it upon Husband's retirement. Trial Court Order, 11/25/14, ¶¶ 1-2.
We now turn to Wife's standard of living, health problems, and lesser salary than that of Husband. The record reflects that Wife testified to having a modest standard of living with Husband. N.T., 1/3/12, at 78. Since separating from Husband, she testified that she was unable to afford her car payment and maintenance, insurance and cell phone bill. Id. Although Wife has health problems that could potentially affect her employment, Wife testified that she is currently able to work. Id. at 68-70. Furthermore, the record reflects that Wife has training in both medical billing and bartending, so even if she lost her job as a bus driver because of her health problems, she has the ability to obtain employment in another area. See id. at 70-71. She also has the ability to earn money by working in the summer months and through dog breeding. See id. at 68, 86-88.
Rather than award alimony, the trial court granted Wife a larger share (sixty percent) of the marital property, including $74,500 from Husband's 401k account and sixty percent of Husband's pension. See Trial Court Order, 11/25/14, ¶¶ 2-4 (dividing Husband's pension plan and otherwise approving the recommendations made by the divorce master in this respect); Divorce Master's Report, 12/5/12, at 9. As stated above, alimony is not available unless "the reasonable needs of the parties cannot be achieved by way of an equitable distribution." Kent , 16 A.3d at 1161. It is only properly awarded "if the trial court finds that it is necessary to provide the receiving spouse with sufficient income to obtain the necessities of life." Id.
Upon review of the expenses submitted by Wife to the trial court, see Exhibit D-27, we agree with the trial court that its equitable distribution award adequately provides Wife the ability to obtain the necessities of life. The record reflects that in 2011, Wife brought home $21,721.30 from her employment with the East Stroudsburg Area School District. Exhibit D-26. This amounts to approximately $1810 per month. Her estimated monthly expenses for necessities - including food, clothing, cell phone, car insurance, gas, car repairs, health insurance, medical needs, and her daughter's education expenses - total $1495. See Exhibit D-27. Although she also has debt that she must pay and had yet to obtain a home of her own at the time of the divorce proceeding, she has an additional $74,500 from Husband's 401k account and, as stated above, the ability to earn more income by obtaining summer work and through alternative ventures (i.e., dog breeding, medical billing or bartending). See N.T., 1/3/12, at 68, 70-71, 86-88, 90. She will also receive money from Husband's pension and her own pension upon retirement (assuming she remains employed by the school district for another three years). Id. at 65.
Examining the remaining factors of section 3701, only the length of the marriage would arguably support the grant of alimony to Wife. The parties are the same age and there is no evidence of any mental or emotional problems for either one; there was no specific evidence regarding inheritance expected by either party; there are no minor children; the parties are both high school graduates and there was no additional education being sought by either party; there was no evidence that either party brought any significant property into the marriage; and although the record reflects that Husband traveled quite a bit for work, leaving Wife to take care of the home and children, this did not preclude her from making enough money to live.
Wife testified that she understood Husband will inherit his mother's house when his mother passes away, but she did not know the value of the house and presented no further evidence in support of this contention. N.T., 1/3/12, at 72.
As we stated above, we review the trial court's decision regarding an award of alimony for an abuse of discretion. Id. "An abuse of discretion requires proof of more than a mere error in judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice, or partiality." Capuano v. Capuano , 823 A.2d 995, 999 (Pa. Super. 2003) (citation omitted). Although Wife certainly made less money than Husband did, she failed to prove that the amount granted to her in the equitable distribution award was inadequate for her to be able to have "the necessities of life." See Kent , 16 A.3d at 1161. We therefore find no abuse of discretion in the trial court's conclusion that Wife was not entitled to alimony.
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015